R v Merrick

[2016] NSWSC 164

Supreme Court of NSW|2016-02-29|Before: Wilson J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-02-29

Before

Wilson J

Catchwords

(2008) 200 A Crim R 206 HML v R [2008] HCA 16
(2008) 245 ALR 204 JDK v R
R v JDK [2009] NSWCCA 76
(2009) 194 A Crim R 333 Qualtieri v R [2006] NSWCCA 95

Source

Original judgment source is linked above.

Catchwords

(2008) 200 A Crim R 206 HML v R [2008] HCA 16(2008) 245 ALR 204 JDK v RR v JDK [2009] NSWCCA 76(2009) 194 A Crim R 333 Qualtieri v R [2006] NSWCCA 95(2006) 171 A Crim R 463 R v Andrews [2003] NSWCCA 7 R v Clark [2001] NSWCCA 494(2005) 152 A Crim R 336 Wilson v The Queen [1970] HCA 17

Judgment (24 paragraphs)

[1]

Judgment

On 29 February 2016 the accused, Ross Albert Merrick, was arraigned before me on an indictment charging him with the murder of Marika Ninness. He entered a plea of not guilty.
The incident that gave rise to the charge occurred late at night on 7 December 2013 at Greenhills. At the time, the accused and the deceased were involved in a de facto relationship.
There does not appear to be any dispute that the accused had some sort of physical contact with the deceased that night, with the result that she fell to the ground, subsequently dying from the injuries she sustained. The issue is whether the accused's actions amount to murder, or manslaughter.
In support of the charge the Crown seeks to lead evidence which has been described as "context evidence" and "relationship evidence". The accused objects to this evidence being given. The question of its admissibility was determined in the absence of a jury on 29 February and 1 March 2016.

[5]

Felicity Freeman

Ms Freeman knew the deceased as a very close friend for some 17 years prior to 2013. Ms Freeman had employed Ms Ninness for about five years prior to the latter's death.
Ms Freeman met the accused in about April 2013, after he had begun the relationship with the deceased. She later became aware of some disharmony between her friend and the accused, evidenced by the accused "de-friending" the deceased and her circle of friends on the social networking site, Facebook.
In August 2013 Ms Freeman assisted the deceased to move into a house she had leased with the accused. At the time, she queried why the deceased was moving in with a man with whom she quarrelled constantly and the deceased replied that she loved the accused. Ms Freeman later had a number of conversations with the deceased in which the deceased spoke of ending her relationship with the accused.
On 3 November 2013 the deceased sent a series of text messages to Ms Freeman in which she complained of the accused having "rag dolled" her around a bedroom, causing her head to go through a wall. She said she planned to drive herself to hospital, although she later told her friend that she was not seen at Maitland Hospital, and the accused was going to take her to another hospital and acknowledge having hurt the deceased.
Later in November 2013 Ms Freeman received a threatening text message from the accused. She subsequently spoke with the deceased and warned her about the possible consequences of living with a violent individual. She also kept a record of text exchanges with the deceased about her relationship with the accused.
On 22 November 2013 the deceased told Ms Freeman by text message that she had broken up with the accused, although she was later equivocal about it, and was still in his company when Ms Freeman hosted her work Christmas party on 7 December 2013.
On one occasion the deceased told Ms Freeman that she had warned the accused that, if he hit her, he would kill her.
In a statement of 6 November 2014 Ms Freeman referred to an exchange of text messages between herself and the deceased in late October 2013 when the deceased told Ms Freeman that the accused was to see a psychologist in relation to his feelings about the deceased, or "why he's gone fucking nuts over me".
The Crown seeks to lead the records of the text messages sent by the deceased to Ms Freeman, in which the deceased reflected on her relationship with the accused.
The statement also provides some information about cocaine use by the accused, and his familiarity with martial arts.

[14]

Constable James Oram

Constable Oram is an electronics evidence specialist with the State Electronic Evidence Branch of the NSW Police. He examined the deceased's Apple iPhone 5 and SIM card and extracted data from both. A schedule to his statement sets out some of the information extracted from the phone, including text exchanges between the accused and deceased on the day the deceased was fatally injured, and summaries of other text messages between the deceased and others.
The messages summarised and also later set out in full includes an account given by the deceased to her friend and employer on 27 October 2013 of an assault upon her by the accused, during which she was rendered unconscious and left with a possibly broken tail bone. A series of messages on the subject followed.
On 15 November 2013 text messages were exchanged between the deceased and Ms Freeman and the accused and Ms Freeman about a salary error connected with the deceased's wages. On 21 November 2013 the deceased sent a message to the same witness saying she had broken up with the accused and intended to return to her husband. A series of text messages were exchanged on the subject.
Communications between the accused and deceased are also extracted, and the Crown relies upon a number of them, as set out in the list which is part of Voir Dire Exhibit B.
Broadly, these messages show running arguments between the accused and the deceased, often using offensive and derogatory language, on 11 May 2013, 12 May 2013, 18 May 2013, 19 May 2013, 15 November 2013, 16 November 2013, 19 November 2013, 21 November 2013, 22 November 2013, 23 November 2013, 24 November 2013, 25 November 2013, and 28 November 2013. A recurrent theme is the accused's asserted hatred of the deceased's husband, and his refusal to countenance any contact between the deceased and her husband. They appear to show a volatile and abusive relationship between the accused and deceased, which the deceased tried repeatedly to end, although later reconciling with the accused.

[17]

The Evidence Tendered by the Accused

Counsel for the accused tendered a volume of statements and other material which, in the main, forms the balance of the Crown brief of evidence. The exception appears to be a report from Dr Peter Ellis, a forensic pathologist to be called in evidence by the accused.
As I understand it, there is no dispute about the admissibility of this material; it simply supplies information about other aspects of the evidence available to the Crown and, it is suggested, is necessary to place the impugned evidence in the overall context of the case to be mounted against the accused.
It is not necessary to summarise all of this evidence, particularly so since the Crown Case Statement forms part of the material before the Court and that document largely performs that function. It is, however, of some use to refer to some aspects of the evidence
Included in the tender are statements made by witnesses at the George Tavern at Greenhills, where the accused and deceased had been drinking on the night of 7 December 2013. Witnesses noted the accused to be aggressive and "looking for a fight", and to subsequently engage in an argument with the deceased. He was observed to slam his glass onto the bar before demanding of the deceased, "Are you fucking coming or not?"
The accounts of those in the car park who saw the accused strike the deceased differ in some respects, as is to be expected of observations of a fast moving and disturbing event.
Adellemaree Thomson noticed the deceased walking across the car park alone, and then saw the accused approach her. The deceased ignored him, and the accused acted in an aggressive manner, sufficiently so that Ms Thomson kept watching the pair, as she thought something was going to happen. She watched as the male waved his arms in an apparent attempt to get the woman's attention, before using all his body weight to throw what was described as a "right handed hook punch" which appeared to strike the deceased in the face. She collapsed instantly to the ground.
Ms Thomson was called to give evidence at committal, and did so on 14 July 2015. She gave details of where she was when she observed the accused and deceased, and of the blow she saw struck, which she described as "more a straight punch" (T9:27), "like a jab" (T9:30) to the right cheek. The accused used his fist (T14:15).
William George saw a man and a woman arguing as they walked up Molly Morgan Drive at Greenhills. He thought the woman was trying to get away from the man; he heard her yelling "go away" and "leave me alone". He saw a lot of hand gesturing and, when next he looked at the couple, the woman was on the ground.
Madelyn Butt did not see the blow, but saw an obviously injured woman on the ground with the accused standing over her. He told Ms Butt, "I've elbowed her in the face and now look at her". Referring to the fact that he had "served", meaning his military duties in Iraq, the accused later said, "she got in my face and it was just an instant reaction."
The accused also told Adam Kuskunovic that "we had an argument and I hit her with my elbow". Mr Kuskunovic had seen the accused and the deceased apparently arguing, with arms waving around, before he saw the woman fall to the ground. The accused was standing with his back to the witness at the time.
To Judith Kuskunovic the accused said, "I have done this before. I should not have done this. She is a lovely person. She has three children." He continued, "She was waving her hands around in the air and I just hit her."
Senior Constable Alan Ballardie was called to attend the Greenhills Shopping Centre car park, arriving there at about 12.45 am on 8 December 2013, after the ambulance that took Ms Ninness to hospital had left.
After making some inquiries, Senior Constable Ballardie cautioned the accused, who then told the officer that he got into a fight with the deceased who, he said, had been "yelling and waving her arms." When she "jumped at" the accused, he claimed to have "elbowed her" in self defence. He said that, although she had not been about to hit him, she "surprised" him, and his military training "took over."
The accused was arrested and taken to Maitland Police Station. He claimed to be too intoxicated to be interviewed. He did, however, provide an account of how Ms Ninness came to be injured, telling the custody manager, "I don't know how this could've happened. We were both at the pub and we had been drinking, both of us. We had an argument and when we left the pub, she was going off. I mean she was in my face and she was waving her hands around my face and arguing, so I swung my arm up and I hit her once. She just fell to the ground and she wasn't moving. I leant down and there was some blood, and then this Melissa or Malinda (or similar name) came along. She must have my car keys."
The accused was later charged with assault type offences and released.
On arrival at the John Hunter Hospital Ms Ninness was noted to have sustained a massive brain injury. She had a hyperacute right convexity subdural haematoma with significant mass effect and mid-line shift. An urgent trauma craniotomy was performed, with evacuation of the haematoma.
Intracranial pressure continued to rise however, and a further contusion developed to the brain. Further surgery was required.
Despite this, Ms Ninness did not recover, and her Glasgow Coma Score never rose higher than 4. There was no evidence of neurological recovery.
On 21 December 2013 Ms Ninness died from the injuries she sustained on 7 December 2013.
The accused was arrested and charged with her murder that same day. After being cautioned, the accused said, "It was all an accident. I bought her an engagement ring. I wanted to marry her."

[18]

The Submissions of the Parties

The Crown contends that the evidence, establishing the nature of the relationship between the accused and the deceased, is admissible as relevant evidence: s 55 of the Evidence Act 1995 (NSW).
Broadly, the Crown submits that the impugned evidence is admissible to provide the proper background and context in which the charged offence occurred, and to allow the jury to assess the evidence with knowledge of the relevant facts.
The Crown contends that the evidence of the volatile and abusive relationship between the accused and the deceased in the months and days preceding the fatal incident, and of threats made by the accused to the deceased, goes directly to proof of the mental element of the charge, and also to proof of the dangerousness of the act of striking the deceased, as contemplated by the alternative charge of manslaughter.
It is submitted that the evidence is additionally relevant to a proper assessment by the jury of the accounts that the accused has given to others of his actions on 7 December 2013. It could rebut the accused's claim that "it was self-defence", and that his military training "kicked in" unconsciously.
The Crown has referred the Court to Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506, R v Andrews [2003] NSWCCA 7, and R v Do (No 2) [2015] NSWSC 111.
The accused submits that the disputed evidence has no relevance at all to proof of the charge of murder, or its alternative, and fails to meet the test at s 55 of the Evidence Act 1995. Ms Evers argues that, since the accused does not dispute that he came into physical contact with the deceased immediately before she fell to the ground late on the night of 7 December 2013, any evidence (other than very general evidence) that relates to events prior to the couple's attendance at the Georges Tavern on 7 December 2013 is irrelevant and inadmissible.
Ms Evers further submits that, even if it is relevant, the evidence is so unfairly prejudicial that it must be excluded: ss 135, 137 of the Evidence Act 1995.
No complaint is raised by reference to the hearsay provisions of that Act.
The accused has referred the Court to DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206, Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463, JDK v R; R v JDK [2009] NSWCCA 76; (2009) 194 A Crim R 333, Regina v ATM [2000] NSWCCA 475, and Regina v Frawley [2005] NSWCCA 66; (2005) 152 A Crim R 336.

[19]

Context Evidence

The question of the admissibility of relationship or context evidence is now the subject of a significant body of jurisprudence. The parties have referred the Court to some of the relevant decisions; there are many more.
Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 involved a domestic murder. In that decision the High Court concluded that the nature of the relationship between the appellant and his wife was relevant to the questions to be decided by the jury. Evidence of enmity could assist the jury in determining whether the account advanced by the appellant as to the circumstances of his wife's death were credible (at [337] per Barwick CJ). Such evidence, going to the conduct of the accused person, would extend to any act of the accused where proof of the act was relevant to whether the accused did the act charged (at [338] per Barwick CJ). Evidence of that nature was held to be admissible where it tended to explain an event, or assist a jury to assess the credibility of differing explanations for the occurrence of the event.
Menzies J (at [344]) said that the jury should not be shut off from evidence which could throw light upon the nature of the relationship between the accused man and his wife. To do so would require the jury to determine the issues in the trial in a vacuum.
Evidence of a hostile or violent relationship between the protagonists has generally been held to be admissible, not to show that the accused person was of bad character, or had a violent nature (tendency evidence), but as part of the background of the relationship, and as showing the atmosphere in which the charged event occurred, an atmosphere which could render it less likely that the charged offence occurred in the way the accused person asserted it had: R v Clark [2001] NSWCCA 494 (2001) 123 A Crim R 506; R v Garner (1963) 81 WN (Pt 1) NSW 120.
Where the relationship is capable of explaining the accused's conduct, or of making the accused's account of that conduct less likely, evidence of it is admissible.
That can be demonstrated by looking at evidence of the relationship between the protagonists from the opposite perspective: that is, if the relationship between the accused and the deceased had been an unswervingly loving and devoted one, where the accused was both careful and solicitous of his partner, would evidence of that fact be relevant to the determination of the charge before the Court? Clearly it would be of great relevance, since it would be capable of rebutting the Crown's case of a deliberate and forceful assault with an intention to do harm.
In this case, the Crown must prove not just the actus reus but also the mental element of the offence, that is, an intention to do grievous bodily harm or to kill.
Although Ms Evers does not concede it, there is clearly an issue about both the physical and the mental aspects of the charge. The onus will fall on the Crown to prove to the requisite standard both facts in issue: the nature of the blow struck to the deceased by the accused; and the accused's intention at the time the blow was struck. The Crown relies upon the disputed evidence as relevant to both.
In my view, evidence of the nature of the relationship between the accused and deceased in the period leading up to the incident is plainly relevant to both facts in issue.
Whilst the accused does not dispute some physical contact between him and the deceased prior to the deceased falling to the ground on 7 December 2013, his concession falls far short to an admission of having murdered Ms Ninness, or even to unlawfully killing her. Ms Evers characterised her client's acknowledged act as similar to what might be done to wave away an insect annoyingly buzzing about one's face; such an act does not import any force, or any intent to kill or harm. It is unlikely to be an act that could be regarded as dangerous.
The accused's admissions to others to having struck Ms Ninness are not, as was submitted by his counsel, consistent, and there is little clarity there. To Mr Lovett, the accused said he had elbowed the deceased in the face because she got in his face and his military training kicked in. He said something similar to Mr Ross, stating he "struck her with [his] elbow". To Ms Butt the accused said he had elbowed the deceased in the face, that being an instant reaction because Ms Ninness was "in his face". He told Mr Kuskunovic that he hit the deceased with his elbow, and Mrs Kuskunovic that he just hit her. The accused raised the issue of self-defence with Senior Constable Ballardie, saying the deceased jumped at him and he elbowed her, his military training having taken over. There was another account to the custody officer at Maitland Police Station of having swung his arm up and hitting the deceased. There is some footage of the accused apparently demonstrating what he had done. On his arrest on 21 December 2013 the accused said that it had been an accident.
It will fall to the jury to assess these comments and determine what, if anything, the admissions prove. To ask the jury to undertake that task in a complete vacuum, knowing nothing about the relationship between the accused and the deceased apart from what was observed of them by others on 7 December 2013 at Greenhills, would in my view be quite wrong, and completely artificial. The jury could be left with an unrealistic and misleading picture of the relationship between the accused and the deceased.
It would give the jury no context against which they could assess the credibility of the accused's various assertions about how the deceased came to be injured. It would also give no context to what appears to be his case at trial, that being that he did no more than wave the deceased away, the gesture being an instinctive movement induced or influenced by his former service in the Armed Forces, one which was without any intention to harm or kill, and without any force.
I do not regard it as an answer to that proposition to suggest that the Crown's case is not a circumstantial one and evidence exposing the nature of the relationship between the accused and deceased is therefore incapable of informing the jury's assessment of the evidence. It is true that the Crown's case is not wholly circumstantial: there is evidence of a dispute between the accused and deceased at the tavern that night; and evidence of some sort of continuing altercation between them as the deceased walked up Molly Morgan Drive. There is evidence from one witness, Ms Thomson, that the accused struck the deceased by punching her forcefully, although the capacity of that witness to observe the events of which she gave evidence at committal is challenged by the accused. Indeed, Ms Evers has indicated that a surveyor is to be called in the defence case to give evidence that, it is suggested, will cast significant doubt upon the reliability of Ms Thomson's evidence.
However, an important feature of which there is no direct evidence is the accused's state of mind; the Crown can only ask the jury to draw an inference about what the accused intended when he came into contact with the deceased at the relevant moment. Necessarily, the jury would be aided in determining what inference can and should be drawn by evidence of the broader relationship between the accused and Ms Ninness, evidence which goes beyond the events of 7 December 2013.
The starting point must be to ask, is the evidence is relevant.
The evidence is capable of establishing the nature of the relationship between the accused and deceased so that the evidence is not assessed in a context divorced from reality. It can inform the jury's consideration of the accused's intention when he had contact with the deceased immediately before she dropped to the ground. It can assist the jury to assess the credibility of the accused's assertions about what happened to the deceased. It is capable of rebutting the accused's case. The evidence must, therefore, be relevant. It is admissible pursuant to s 55 of the Evidence Act 1995.
In HML v R [2008] HCA 16; (2008) 245 ALR 204, an authority referred to in oral submission by Ms Evers, and which considers (in the context of a sexual assault allegation) the admissibility of relationship evidence, the High Court referred to the role of common sense in the application of the law. The statement is apposite, "In Director of Public Prosecutions v Boardman in a passage later cited with approval in this Court, Lord Cross of Chelsea said that there are cases in which to exclude evidence of the kind presently in question would be an affront to common sense. The law must apply a more definite test, but common sense and relevance are closely related. A jury's assessment of some kinds of evidence is likely to be based more upon common sense than upon scientific method" (at [6], per Gleeson CJ, Crennan and Kiefel JJ, citations omitted).
The accused submits that, even if the evidence is relevant, its probative weight is slight, and readily outweighed by the danger of unfair prejudice to him in admitting the evidence. Reliance is placed on ss 135 and 137 of the Evidence Act 1995.
Those provisions are as follows. "135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. …….. 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
Section 135 provides for the Court to exercise its discretion to exclude evidence if the probative value of the evidence is substantially outweighed by the danger of one or more of the considerations set out in s 135(a) - (c).
I have already concluded that the evidence is relevant, that is, it has probative value. The principle facts in issue in this trial are the nature of the contact between the accused and the deceased that caused her to drop to the ground, and the accused's intention at the time. The disputed evidence is of direct relevance to both facts in issue. It is my conclusion that the probative value of the evidence is very high.
The accused argues that the evidence is unfairly prejudicial, and would result in a waste of the time necessarily spent in cross-examination of the particular witnesses.
I do not regard the latter as warranting the exclusion of the evidence. Whilst it will be necessary for counsel to explore the evidence with the relevant witnesses, and time will be taken in that exercise, I would not characterise that time as having been wasted. It will be time spent probing considerations of relevance to the facts to be decided by the jury. In those circumstances, I am unable to conclude that the probative value of the evidence is substantially outweighed by the danger of the Court's time being wasted.
Nor am I able to conclude that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the accused. Any evidence which may have the capacity to prove a charge against an accused person is prejudicial, but the prejudice is not necessarily unfair. Ms Evers did not identify the way in which her client would be unfairly prejudiced, and I am content that appropriate directions can be given to the jury as to the basis of the admission of the evidence, and how it may be used, which would address any potential danger of unfairness.
I would not exercise the Court's discretion to exclude the evidence pursuant to s 135.
Section 137 requires the Court to exclude the evidence if the probative value of the evidence is outweighed by the danger of unfair prejudice. I have concluded that the evidence has substantial probative value. For the reasons already stated, I do not consider the value of the evidence of the relationship between the accused and deceased to be outweighed by the danger of unfair prejudice.
I do not, however, draw that conclusion in relation to all of the evidence advanced as context or relationship evidence.
Evidence which goes beyond a capacity to directly illuminate the relationship between the accused and deceased, such as the nature of the relationship between the accused and some of those associated with the deceased, has some relevance, but it is not high. There is, in my view, a danger of potential prejudice to the accused, in circumstances where the value of the evidence is outweighed by the danger of prejudice.
Accordingly, the following evidence is rejected, 1. Evidence connected with the accused's supposed act in slashing the tyres of a bicycle owned by Jackson Blackie; 2. Evidence connected with the accused's abusive comments to the deceased's employer after an error in the calculation or payment of the deceased's salary; and 3. Evidence connected with the accused's supposed hatred of David Blackie, except insofar as the evidence is of a threat made to Mr Blackie coupled with a threat made to the deceased.
It will be necessary for counsel to use care when leading evidence from the relevant witnesses, or cross-examining them, so that comment straying into inadmissible evidence is not invited.
Because the parties have expressed some reservation in applying these rulings to the volume of text messages sought to be led by the Crown (and supplemented by the accused) I have set out a list of text messages which are admissible consistent with my reasons in an annexure to the judgment.

R v Merrick

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Judgment (24 paragraphs)

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